After today? Easy: the entire court is loaded into a black helicopter in the middle of the night and never seen again. The White House spokesperson says, winking, “The White House officially has no comment.”
This quickly becomes a standard ritual at the changing of each administration, and an accepted job hazard for incoming justices.
When did the discourse become so childish? Official acts is pretty clear and all of the fascination with the new standard will be derived from the gray area where reasonable adults disagree but the president can’t just order a bombing run on Toronto or murder political opponents now anymore then he could last week.
I read the ruling, and my takeaway is that either a) "official acts" is so overly broad that virtually any action could be done as an "official act", or b) "official acts" is very, very unclear.
E.g. from the court's opinion:
> Whenever the President and Vice President discuss their official re-
sponsibilities, they engage in official conduct.
It's not a huge leap to infer that the President, as Commander in Chief, is engaging in official conduct any time they ask the army (or its many contractors) to do something.
The only thing the Constitution says is:
> The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States
There's nothing in there that says they can't be used domestically, or for what purposes the President can control them. There could be some quibbling about what "actual Service" means, but I suspect it becomes recursive to "whatever the president says actual Service is".
The specific reason that everyone is freaking out is this part of the opinion:
> In dividing official from unofficial conduct, courts may not inquire
into the President’s motives. Such a “highly intrusive” inquiry would
risk exposing even the most obvious instances of official conduct to ju-
dicial examination on the mere allegation of improper purpose.
I.e. the president's motive is unquestionable, the only question is whether the action was taken via some power granted to the President. If it is, the President has immunity, and the president has _very_ broad powers.
Whenever the President and Vice President discuss their official re- sponsibilities, they engage in official conduct.
This is a misleading partial quotation. In the context of what they were saying, the president has the presumption of immunity, but it is not guaranteed. They specifically remanded the issue of Trump trying to get Pence to break the law to the lower courts to decide whether there was immunity. They did not say there was blanket immunity.
The question then becomes whether that presumption of immunity
is rebutted under the circumstances. It is the Government’s burden to
rebut the presumption of immunity. The Court therefore remands to
the District Court to assess in the first instance whether a prosecution
involving Trump’s alleged attempts to influence the Vice President’s
oversight of the certification proceeding would pose any dangers of in-
trusion on the authority and functions of the Executive Branch.
> This is a misleading partial quotation. In the context of what they were saying, the president has the presumption of immunity, but it is not guaranteed. They specifically remanded the issue of Trump trying to get Pence to break the law to the lower courts to decide whether there was immunity. They did not say there was blanket immunity.
Sure, but take a look at what I posted, and then the proceeding sentences:
> Presiding over the January 6 certification proceeding at which Members of Congress count
the electoral votes is a constitutional and statutory duty of the Vice
President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s
allegations that Trump attempted to pressure the Vice President to
take particular acts in connection with his role at the certification pro-
ceeding thus involve official conduct, and Trump is at least presump-
tively immune from prosecution for such conduct.
I don't see any reading from that where Trump doesn't have blanket immunity. They stopped just barely short of saying so, with a clear implication of what they believe.
Certifying the vote is an official responsibility of the VP, and Trump was talking about that responsibility. They are not allowed to consider motives, only whether Trump talking to Pence about certification is within his official powers.
I would be very, very surprised if a lower court was able to find that the conduct was not in an official function. There's not a lot of room here once you take out whether the motives align with a presidential function.
I don't see any reading from that where Trump doesn't have blanket immunity. They stopped just barely short of saying so, with a clear implication of what they believe.
I don't understand, just read the next two paragraphs. They say he doesn't have blanket immunity, and his presumptive immunity can be pierced, and explicitly sent the case back to the lower court to gather facts and decide whether he has immunity in this instance. All three of those points are not blanket immunity.
i think the thrust of the courts opinion today is that it’s not at all clear what’s official and what’s not and even if you can delineate what’s official, prosecutors are unable to use anything that isn’t public record and “unofficial” in their case, which eviscerates any real ability to enforce accountability.
In the dissent, they
call out that what Nixon did wouldn't have been prosecutable under this interpretation.
If you can't enter private comms into evidence, all a president need do is privately communicate the disappearance of someone, domestic or foreign, and that evidence would be barred from any possible court cases.
Of course, you could still impeach, but no criminal prosecution could occur. If you're 35, at worst (legally) you'd lose out on your remaining term.
The implications of this ruling are absurd, and rife for abuse, should one decide to go rouge.
Oh, look, the moment decisions don't go the way I agree with, we throw democracy and institutions out of the window. Who's a "threat to democracy" now?
I’m not saying it should be done, but that’s the reductio ad absurdium this decision leaves us with. The aspiring despot’s toolbox has been converted into a full-blown machine shop.
This quickly becomes a standard ritual at the changing of each administration, and an accepted job hazard for incoming justices.